Casio Computer Company Limited v Sayo & Ors

When deciding whether to extend time for a very late appeal, the court should consider the merits as well as the absence of a satisfactory explanation for delay. The court may take account of a defendant’s resources when deciding whether to make an interim payment order, because the order is provisional and inability to pay may cause irreparable prejudice. That consideration is not decisive where the order concerns a separately identified sum which the defendant has no real prospect of defending. An interim payment order may properly be followed by summary judgment where the underlying merits have already been considered and justify final judgment.

Casio obtained a default judgment against Mr Tsuru concerning $30 million paid for investment. Neuberger J set aside the default judgment but ordered an interim payment of $3.33 million in respect of sums which Mr Tsuru had retained personally and which he had no real prospect of defending.

Rimer J later entered summary judgment for the same sum, considering that Neuberger J’s reasoning justified final judgment under Part 24. Mr Tsuru sought permission to appeal both decisions more than two years and 18 months out of time. The central issue was whether time should be extended because Neuberger J had not considered Mr Tsuru’s limited resources when making the interim payment order.

1. The applications were dismissed. The delay was substantial and no satisfactory explanation was given. The evidence concerning Mr Tsuru’s means and the loans said to support the applications was also inadequate.
2. Although the court will usually consider the merits before refusing a very late application solely because there is no good reason for the delay, the proposed challenge had no sufficient prospect of success. The point concerning resources had not been advanced before Neuberger J and could not properly be used to reopen his order.
3. The court accepted that resources are relevant to an interim payment application because the order is provisional. In an ordinary damages case, inability to meet the order might cause irreparable harm, particularly if the amount might ultimately have to be repaid. The position differs where the court has considered the merits and identified a distinct sum which the defendant has no real prospect of defending.
4. Neuberger J was entitled to set aside the default judgment and make a substantially smaller interim payment order. Rimer J was entitled to treat the reasoning supporting that order as sufficient basis for summary judgment under Part 24. No material error was shown in either decision.

• High Court: Neuberger J, on 30 June 1999, set aside the default judgment but ordered an interim payment of $3.33 million.
• High Court: Rimer J, on 28 January 2000, entered summary judgment for the same sum under Part 24.
• Court of Appeal (Civil Division): the applications for permission to appeal and extension of time were dismissed.